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Attorneys Christopher Kendrick and Valerie Moore analyze 501 East 51st Street etc. v. Kookmin Best Ins. Co., Ltd.

Court Affirms Summary Adjudication of Bad Faith Claim Where Expert Opinions Raised a Genuine Dispute

Monday, July 6, 2020 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP

In 501 East 51st Street etc. v. Kookmin Best Ins. Co., Ltd. (No. B293605, filed 4/2/20, ordered pub. 4/16/20), a California appeals court affirmed summary adjudication and dismissal of a bad faith claim based on the genuine dispute doctrine.

501 East 51st Street Long-Beach-10, LLC (501) was the owner of a 10-unit apartment complex, insured by Kookmin Best. In 2017, an underground water main alongside the building burst which, according to 501, caused the building to move and crack. 501 made a claim and supplied a geotechnical report finding cracks in the foundation walls, cracks in the stucco and significant floor deformation and tilting near the water leak. The engineer’s opinion concluded that that “existing building distress was substantially contributed to by the water main break. The water introduced to the soil medium appears to have triggered differential foundation movement causing the stress features to develop.”

Kookmin retained its own engineers to investigate, who returned an opinion that the leak had exacerbated long-term pre-existing settlement which would continue. Under the policy, damage to the building caused by earth movement and settlement were excluded, but water damage resulting from an “accidental discharge” of water was covered. Kookmin then obtained an opinion from coverage counsel, who opined that only damage allocable to the water leak would be covered.

Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Ms. Moore may be contacted at vmoore@hbblaw.com


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Policyholders in the United States have been advancing similar arguments premised on broad coverage grants and ambiguous policy language.

Global Insurer Agrees to Pay COVID-19 Business Interruption Claims

Monday, July 6, 2020 — Sergio F. Oehninger & Daniel Hentschel - Hunton Insurance Recovery Blog

AXA, one of the biggest insurance companies in the world, has agreed to pay COVID-related business interruption claims by a group of restaurants in Paris after a court ruled that the restaurants’ revenue losses resulting from COVID-19 and related government orders were covered under AXA’s policies.

AXA initially took the position that its insurance policies did not cover business interruption caused by COVID-19. The restaurant then sued AXA in a French court, seeking coverage for operating losses resulting from a government order issued in March mandating the closure of restaurants and bars in response to the COVID-19 pandemic. The court concluded that the government orders, which prohibited restaurants from receiving the public and offering traditional sit-down dining services, triggered the policy’s coverage for business interruption coverage. The court rejected AXA’s argument that the pandemic was uninsurable, and made clear that if AXA intended to exclude such a risk it should have done so expressly in its policy. The court also rejected AXA’s argument that there must be a prerequisite of an insured event for the application of the “administrative closure” provision, noting that no prerequisite was required by the policy. AXA’s argument that the government orders did not require the restaurant to be closed because the restaurant was authorized to maintain take-away services was also rejected. As a result, the court ruled in favor of the policyholders, holding that the business interruption loss resulting from the government orders qualified for insurance coverage.

Reprinted courtesy of Sergio F. Oehninger, Hunton Andrews Kurth and Daniel Hentschel, Hunton Andrews Kurth
Mr. Oehninger may be contacted at soehninger@HuntonAK.com
Mr. Hentschel may be contacted at dhentschel@HuntonAK.com


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This decision operates to dismiss all of Plaintiffs’ claims based on their failure to meet Delaware’s strict expert deadlines and establish a prima facie case under Texas law.

White and Williams LLP Secures Affirmation of Denial to Change Trial Settings Based on Plaintiffs’ Failure to Meet the Texas Causation Standard for Asbestos Cases

Monday, July 6, 2020 — Christian Singewald & Rochelle Gumapac - White and Williams LLP

The Delaware Supreme Court, in a rare split opinion, affirmed the trial court’s denial of Plaintiffs’ Request to Change Trial Settings in favor of all defendants, including a major automotive manufacturer represented by White and Williams LLP, in a mesothelioma case with a young decedent who had an alleged economic loss claim exceeding $9,000,000, in Shaw v. American Friction, Inc. et al., No. 86, 2019. This decision operates to dismiss all of Plaintiffs’ claims based on their failure to meet Delaware’s strict expert deadlines and establish a prima facie case under Texas law.

Plaintiffs’ Complaint invoked the application of Texas substantive law and alleged that multiple manufacturers were negligent and strictly liable for failing to warn the decedent of the alleged dangers posed by the use of asbestos-containing products. Plaintiffs’ alleged asbestos exposures from defendants’ products caused Mr. Shaw’s disease and subsequent death.

In 2007, Texas instituted its now well-known causation requirement, which requires the “dose” of asbestos exposure from each defendant’s products to be quantified by an expert. Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 773 (Tex. 2007). Prior to decedent’s death, Plaintiffs’ counsel deposed decedent and his father for product identification purposes. During the depositions, Plaintiffs’ counsel failed to obtain the necessary factual information from his clients for an expert to be able to opine as to alleged exposure doses from any defendant’s product. Despite lacking the requisite information for a prima facie case under Texas law, Plaintiffs sought and were given placement in an expedited trial setting, which had strict, defined deadlines.

Reprinted courtesy of Christian Singewald, White and Williams LLP and Rochelle Gumapac, White and Williams LLP
Mr. Singewald may be contacted at singewaldc@whiteandwilliams.com
Ms. Gumapac may be contacted at gumapacr@whiteandwilliams.com


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ABC’s Construction Backlog Indicator Inches Higher in May; Contractor Confidence Continues to Rebound

July 6, 2020 — ABC - Construction Executive

Associated Builders and Contractors reported that its Construction Backlog Indicator rose to 7.9 months in May, an increase of less than 0.1 months from April’s reading. Furthermore, based on an ABC member survey conducted from May 20-June 3, results indicate that confidence among U.S. construction industry leaders continued to rebound from the historically low levels observed in the March survey.

Nonresidential construction backlog is down 0.8 months compared to May 2019 and declined year-over-year in every industry, classification and region. Backlog in the heavy industrial category, however, increased by nearly one month in May after reaching its lowest level in the history of the series in April.

Reprinted courtesy of ABC, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

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Western District of New York Addresses Agency Prong of Additional Insured Coverage

July 6, 2020 — Eric D. Suben - Traub Lieberman

On June 5, 2020, the United States District Court for the Western District of New York decided Firemen’s Insurance Company of Washington, D.C. v. ACE American Insurance Company, Case No. 19-cv-6413-FPG, applying a 2017 New York Court of Appeals precedent to determine whether an employee’s acts or omissions were on his employer’s behalf as required to trigger additional insured coverage based on a proximate causation nexus.

Plaintiff in the underlying lawsuit was a mason engaged in construction of a new Wegmans supermarket. His employer, MP Masonry, contracted directly with Wegmans, agreeing to procure insurance and to indemnify Wegmans for injury to MP Masonry’s employees.

Mr. Suben may be contacted at esuben@tlsslaw.com

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Will Affordable Housing Ever Come Back to Colorado?

July 6, 2020 — David M. McLain – Colorado Construction Litigation

Prior to the Great Recession, condominiums and townhomes accounted for approximately 26%-27% of all permits pulled along the Front Range, and were referred to as “affordable housing,” meaning that you could find homes that were inexpensive or reasonably priced. Now that term has all but disappeared, to be replaced by “attainable housing.” In other words, it is possible to become a homeowner in Colorado, but it is by no means affordable.

To encourage more condominium and townhome construction, then-Gov. John Hickenlooper signed HB 17-1279 into law on May 23, 2017. Thereafter, the market has been waiting to see when affordable housing would make a resurgence. Unfortunately, it does not look like that will be happening any time soon.

Mr. McLain may be contacted at mclain@hhmrlaw.com

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The 25th Annual Oregon Construction Law Seminar

July 6, 2020 — Beverley BevenFlorez – CDJ Staff

This annual two-day conference will cover topics such as We Never Stop Learning – Case Law and Statutory Update, Owners are People Too, Demystifying Delays, and more. The conference is relevant for architects, attorneys, contractors, engineers, and government employees. Faculty includes construction lawyers, mediators, judges, and industry professionals.

September 10th-11th, 2020
World Trade Center
121 SW Salmon St
Two World Trade Center Building
Portland, OR 97204

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A recent opinion should get the attention of any contractor or subcontractor performing work on a federal funded construction project.

Federal Court Opinion Has Huge Impact on the Construction Industry

Monday, July 6, 2020 — Wally Zimolong - Supplemental Conditions

The United States District Court for the Eastern District of Pennsylvania in Philadelphia recently issued an opinion that should get the attention of any contractor or subcontractor performing work on a federal funded construction project. In U.S. ex rel IBEW Local 98 v. The Fairfield Company, the federal court held that a contractor on a SEPTA project could be held liable under the False Claims Act for failing to pay its workers under the Davis Bacon Act. The court found that liability was appropriate under the FCA even through the contractor did not knowingly violate the Davis Bacon Act. The court awarded the plaintiff over $1,000,000 in damages and an additional over $1,000,000 in attorneys fees.

An Extremely Brief Primer on the FCA

A full discussion of the FCA is beyond the realm of this blog post and you could write a book on FCA cases. But in a nutshell, the FCA prohibits a contractor from knowingly submitting a claim for payment to the federal government (or an entity receiving funding from the federal government, like SEPTA) that is false. Importantly, knowingly does not equal actual knowledge of the falsity of the claim. Rather, “reckless disregard of the truth or falsity” of the submission is sufficient. As explained below, this standard played an important role in the court’s decision and should give contractors performing work on federally funded projects pause.

Reprinted courtesy of Wally Zimolong, Zimolong LLC

Mr. Zimolong may be contacted at wally@zimolonglaw.com

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Several attorneys from the law firm of Balestreri Potocki & Holmes have been selected by Super Lawyers.

Balestreri Potocki & Holmes Attorneys Named 2020 Super Lawyers and Rising Star

Monday, July 6, 2020 — Balestreri Potocki & Holmes

The law firm of Balestreri Potocki & Holmes is pleased to announce that Shareholders Thomas A. Balestreri, Jr. and Joseph P. Potocki have been selected as 2020 Super Lawyers and Associate Robin H. Smith has been named a 2020 Rising Star.

Each year no more than 5 percent of the lawyers in the state are selected to receive the honor of being included in the Super Lawyers list and no more than 2.5 percent of the lawyers are selected to the Rising Stars list.

Balestreri has been selected to the Super Lawyers list in the areas of Construction Litigation. Balestreri has dedicated most of his 30 plus years in practice to the representation of developers, property owners, and general contractors in litigation, negotiations, and risk management. A seasoned trial lawyer, he has tried a number of high exposure cases with great success.

Selected as a Super Lawyer in the area of Construction Litigation, Potocki’s practice concentrates on litigation, transactional matters and construction contract drafting and negotiation. His extensive litigation experience involves high-value disputes relating to a wide variety of issues in the real estate, business and construction arenas.

Smith has been named a Rising Star by Super Lawyers in the area of Civil Litigation. In her varied litigation practice, Smith represents individuals and business entities in complex catastrophic personal injury matters. She also represents employers in labor and employment matters and a variety of businesses, including automobile dealers, in breach of contract, unfair competition, unfair business practices, defamation, and consumer claims.

Super Lawyers, a Thompson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

Balestreri Potocki & Holmes is headquartered in San Diego, California. The firm provides comprehensive counsel to large and small companies across a wide range of established and emerging industries. Balestreri Potocki & Holmes is located in downtown San Diego at 401 B Street, Suite 1470. More information about the firm can be found at: www.bph-law.com.

Reprinted courtesy of Balestreri Potocki & Holmes

Business person signing document

Taking time to read the specific language in your project documents is important.

Read Before You Sign: Claim Waivers in Project Documents

Monday, July 6, 2020 — William E. Underwood - ConsensusDocs

Not all claim waivers are appropriately titled “Waiver of Claims.” In fact, claim waivers can be found “hiding” without any advertisement or fanfare in a number of project documents, including change orders and applications for payment. So although getting work quickly approved and paid for is important, taking time to read the specific language in your project documents is just as important. Failure to pay close attention to this language could result in the waiver of key, unresolved project claims.

Further, and although it should go without saying, it is also just as important to read all of the terms of your contract. Important waiver language might not exist on the face of form project documents, but rather might be contained in the general and/or supplemental conditions of your contract and automatically incorporated into your form project documents. And these types of incorporated waivers can be just as enforceable.

So it is critically important to understand what you are signing and the implications it might have on future claims. This article will explore some of the common types of claim waivers that can be found in project documents so that you are better positioned to avoid inadvertently waiving claims in the future.

Reprinted courtesy of William E. Underwood, Jones Walker LLP

Mr. Underwood may be contacted at wunderwood@joneswalker.com

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Construction Executive has ranked ACS as the top 23rd national firm.

Ahlers, Cressman & Sleight PLLC Ranked Top Washington Law Firm By Construction Executive

Monday, July 6, 2020 — Joshua Lane - Ahlers Cressman & Sleight Blog

ACS is proud to announce that in its review of the top 50 national construction law firms, Construction Executive has ranked ACS as the top 23rd national firm, and first among firms with a majority of their attorneys based in Washington.

Now in its 18th year of publication, Construction Executive is the leading trade magazine about the business of construction. In its June 2020 issue, CE published a comprehensive ranking of The Top 50 Construction Law Firms™ featuring breakouts and analysis accompanied by an article in which leading legal experts discuss the impact of the COVID-19 pandemic on the construction industry. To determine the 2020 ranking, CE asked hundreds of US law firms with a construction practice to complete a survey. Data collected included: 1) 2019 revenues from the firm’s construction practice; 2) number of attorneys in the firm’s construction practice; 3) percentage of firm’s total revenues derived from its construction practice; 4) number of AEC clients; and 5) the year in which the construction practice was established. The ranking was determined by an algorithm that weighted the aforementioned factors in descending order of importance.

Reprinted courtesy of Joshua Lane, Ahlers Cressman & Sleight Blog

Mr. Lane may be contacted at joshua.lane@acslawyers.com

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The revised regulations address many of the deep concerns raised by the contracting community.

MTA Implements Revised Contractors Debarment Regulations

Monday, July 6, 2020 — Steven M. Charney, Gregory H. Chertoff & Paul Monte - Peckar & Abramson, P.C.

On June 3, 2020, the Metropolitan Transit Authority (“MTA”) published and implemented revised regulations pertaining to the debarment of contractors. The revised regulations address many of the deep concerns raised by the contracting community.

Under relevant administrative procedure, the MTA publication of the revised regulations starts a 45 day notice period before the regulations can be adopted as final.

The prior regulations essentially required that debarment occur upon a purely formulaic calculation establishing that a contractor: 1) was more than 10% late, or 2) had submitted invalid claims that exceeded the adjusted contract price by a measure of 10%.

The revised regulations represent improvements over the prior regulations.

Critically, the revised regulations address the primary concern raised by the contracting community, that being the mandate of purely formulaic debarment. Instead, the revised regulations establish a process that includes greater flexibility and discretion before debarment may ensue.

Reprinted courtesy of Peckar & Abramson, P.C. attorneys Steven M. Charney, Gregory H. Chertoff and Paul Monte
Mr. Charney may be contacted at scharney@pecklaw.com
Mr. Chertoff may be contacted at gchertoff@pecklaw.com
Mr. Monte may be contacted at pmonte@pecklaw.com


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Anthony Garasi, Jared Christensen and August Hotchkin are being recognized as Nevada Legal Elites in the Nevada Business Magazine.

Anthony Garasi, Jared Christensen and August Hotchkin are Recognized as Nevada Legal Elite

Monday, July 6, 2020 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP

Bremer Whyte Brown & O’Meara, LLP is proud to announce Partners Anthony Garasi and Jared Christensen in our Las Vegas office, along with Associate August Hotchkin in our Reno office are being recognized as Nevada Legal Elites in the Nevada Business Magazine.

The Nevada Legal Elite list includes the top 4 percent of attorneys in the state broken down by location. To qualify, each nominee goes through an extensive verification process resulting in the top attorneys in the state, chosen by their peers. Upon the nomination process closing, each ballot is individually reviewed for eligibility and every voting attorney is verified with the State Bar of Nevada.

Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
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Attorney Tred R. Eyerly discusses King's Cove Marina, LLC v. Lambert Commercial Construction. LLC.

"Your Work" Exclusion Bars Coverage

Monday, July 6, 2020 — Tred R. Eyerly - Insurance Law Hawaii

Although the appellate court agreed there was property damage caused by an occurrence, the "your work" exclusion barred the insured contractor's claim. King's Cove Marina, LLC v. Lambert Commercial Construction. LLC, 2019 Minn. App. LEXIS 389 (Minn. Ct. App. Dec. 16, 2019).

King's Cover Marina sought to expand and remodel its main building. The marina hired Lambert to perform the remodeling project. Lambert hired Roehl Construction, Inc. as a subcontractor to install new concrete footings on the main level of the building and to provide concrete for the second-level mezzanine floor.

After completion, the marina sued Lambert for breach of contract and negligence. The marina alleged that the concrete floors on the first and second levels were not constructed in accordance with industry standards or with project plans and specifications, resulting in excessive movement and cracking of the new concrete floors. Lambert tendered its defense to its insurer, United Fire & Casualty Company. United Fire defended under a reservation of rights and later sued Lambert for declaratory judgment.

Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert

Mr. Eyerly may be contacted at te@hawaiilawyer.com

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There are numerous benefits to hiring older workers.

Five Reasons to Hire Older Workers—and How to Keep Them

Monday, July 6, 2020 — Charlie Kimmel - Construction Executive

The economic downturn in 2008 created a black hole of talent in the construction industry. As a result, finding project managers between the ages of 28 and 33 and superintendents between the ages of 23 and 30 in today’s market can be difficult, if not impossible in some cases. To make up for this gap in available talent, construction executives are going to have to look to project managers and superintendents in the 58-to-64 age range. Fortunately, there are numerous benefits to hiring older workers.

1. OLDER WORKERS WANT TO MENTOR THE NEXT GENERATION.

This is their most significant benefit: the older generation truly enjoys teaching younger construction workers and passing on skills and knowledge, while also getting to do a job they’re good at. This means investing in one experienced worker today can pay dividends for the quality of a company’s workforce for decades to come, as mentorship programs have proven to increase the skills and loyalty of younger workers. If a company wants someone with deep knowledge and broad experience to help mold the next generation of construction workers, they should hire an older employee.

Reprinted courtesy of Charlie Kimmel, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.



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The impact of COVID-19 on the real estate market has not been felt evenly.

Pillsbury Insights – Navigating the Real Estate Market During COVID-19

Monday, July 6, 2020 — Caroline A. Harcourt - Gravel2Gavel Construction & Real Estate Blog

Until COVID-19 officially took hold in the U.S. in March of 2020, the U.S. real estate market was active, even robust. Starting in March, however, the possible scope of the pandemic and the sudden imposition of stay-at-home orders resulted in deal volume falling precipitously—with sales, leasing and lending transactions being put on temporary “wait and see” pause or terminated altogether.

The impact of COVID-19 on the real estate market has not been felt evenly. Hotels have been hit extremely hard, with many hotels shuttered altogether and many others only open at staggeringly low occupancy rates. Retail likewise has been virtually shut down in various parts of the country—with retailers across the country asking for rental forbearance or lease surrenders and others, such as J Crew, Neiman Marcus and Pier 1, pursuing bankruptcy reorganizations or liquidation. Multifamily has also been relatively hard hit, and landlords are having to navigate a web of local, state, and even federal regulations regarding tenant protections, such as non-eviction orders. The least affected sector so far has been office—however employers and office space users who are becoming facile with zoom and “working at home” may well re-examine their usage of office space—and it is within the realm of possibility to imagine that even this sector may come under pressure over time.

Reprinted courtesy of Caroline A. Harcourt, Pillsbury

Ms. Harcourt may be contacted at caroline.harcourt@pillsburylaw.com

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Arezoo Jamshidi and Michael Parme were selected to the Super Lawyers Rising Stars list.

Haight’s 2020 San Diego Super Lawyers and Rising Stars

Monday, July 6, 2020 — Haight Brown & Bonesteel LLP

Haight congratulates partners Michael Parme and Arezoo Jamshidi who were selected to the 2020 San Diego Super Lawyers Rising Stars list.

Each year no more than 2.5% of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.

Haight Brown & Bonesteel LLP

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